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ACTION AGAINST TORTURE

Action by victims and their families

To whom does one turn for help when a relative, friend or associate is in danger of being tortured? What actions do families take domestically and internationally to try to stop the torture or seek redress? Speed is especially important in the first few days of detention and interrogation. Because relatives are often not informed where a detainee is held during this initial period of interrogation, they may have to pursue their inquiries personally at police stations and military barracksoften receiving little or misleading information about the detainee's whereabouts, legal status and physical condition.

Where emergency legislation or broad powers of arrest and detention exist, the security apparatus may be empowered to hold a detainee for long-sometimes indefinite-periods in incommunicado detention. Families try any well-placed friend or contact in the bureaucracy, judiciary, military or other official body who might intervene.

Often, however, the only legal procedure available is to apply to the courts to test the legality of a detention, for example, by an application for a writ of habeas corpus, amparo, or the equivalent. In theory, habeas corpus is a mechanism that provides for judicial restraint on the security forces. In practice, it depends for its effectiveness on the independence, integrity and courage of the judiciary and on the susceptibility of the security forces to control by the judiciary. In

Legal landmark

In a case of international significance, the father and sister of Joelito Filártiga, a 17-year-old Paraguayan youth who died under torture in 1976 filed a civil action for damages in a US court against their compatriot Americo Peña-Irala, who was Inspector General of Police of Asunción at the time of the alleged torture.

Although the initial ruling in a federal district court found that the US courts did not have jurisdiction to hear the case, in June 1980 the US Federal Court of Appeals for the Second Circuit ruled that torture, when officially condoned, is a violation of international law under the Alien Tort Statute (Title 28 of the United States Code, Section 1350). This was a landmark decision that opened a new domestic remedy in international human rights law, and an important precedent in a world where the enforcement of human rights law remains principally at the national level. In the words of the US Court of Appeal's judgment, "the torturer has become, like the pirate and slave trader before him... an enemy of all mankind".

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Action by national groups An encouraging feature of the world human rights map is the growing number of local and national organizations that are courageously prepared to confront their own governments with their records on human rights abuses including the onerous charge of torture. Examples are non-governmental human rights groups, bar associations, trade unions, churches, minority rights groups and political parties.

They concentrate on actions through the courts, such as applications for writs of habeas corpus, the collection of primary data about individual cases of torture and other human rights abuses which they may be able to submit to international organizations. By collating data over a period of time, some groups are able to discern patterns of human rights violations of particular social sectors and may therefore be able to challenge the government's position that any human rights abuses that occur are merely the excesses of individual officials. Such groups can disseminate practical information to victims and potential victims on prisoners' rights, procedures to be followed in lodging complaints of torture, or on what medical, financial or legal aid is available locally and from international sources.

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Bar associations and individual lawyers and judges can press for the adoption of legal safeguards against torture both in countries where torture is inflicted and elsewhere; members of parliament can send appeals through international channels and seek to prevent torture through investigative missions and specific reports or hearings; journalists can expose torture by locating torture centres, identifying individual torturers and obtaining testimonies and photographic evidence. Once reports of torture are published, the news media should follow up the story to see whether the government conducts an impartial and effective investigation of the allegations and brings those responsible to justice. Among other individuals and groups which can help to prevent torture are religious leaders, who can denounce torture as incompatible with religious teachings and encourage action against it; trade unionists, who can mobilize support for their colleagues and others who have been tortured at home or abroad; women's organizations, which can take action concerning the special degradation faced by women at the hands of male torturers; and teachers' organizations, which can ensure that the issue of torture is raised within schools and universities in the context of human rights education. Medical organizations can investigate allegations of the participation of members of their profession in the infliction of torture and can impose appropriate disciplinary sanctions where involvement is proved. Organizations of military, police and prison officials can press for training programs which instil a personal conviction that torture must not be inflicted. Action by inter-governmental organizations

Several of the inter-governmental organizations that work for the protection of human rights have developed bodies and procedures to deal with allegations of torture and other cruel, inhuman or degrading treatment or punishment. They have generally been more successful in elaborating international norms against torture than in implementing them; they cannot enforce their recommendations and consequently their principal sanction is to bring international pressure to bear on governments by investigation and, in some cases, by public exposure. The Human Rights Committee The Human Rights Committee was established in 1976 pursuant to the terms of the International Covenant on Civil and

Political Rights. Its 18 members are elected for four year terms by the States Parties to the covenant; they meet thrice yearly. They are elected as independent human rights experts serving in their personal capacities and are empowered to consider the compliance of all States Parties with the covenant. In a key interpretation of its own procedures the committee decided to receive complaints from individuals other than the victim of a human rights violation-normally a close relative or an appointed lawyer-as the victim is often in prison, dead, or otherwise prevented from filing a complaint.

United Nations machinery Primary among the special UN agencies that deal with torture is the UN Commission on Human Rights, established in 1946. Although it initiated the drafting of the Universal Declaration of Human Rights in 1948, it did not consider itself empowered to investigate complaints of torture or other human rights violations until some two decades later. Its 43 members officially represent their governments.

Resolution 1235, adopted by the Economic and Social Council (ECOSOC) in 1967, has allowed the UN commission to examine torture allegations in public session from several countries. Under the "1235 procedure" working groups composed of members of the UN commission acting in their personal capacities have examined human rights situations in southern Africa, Israeli-occupied territories and Chile.

The "1235 procedure" has also been a useful means obtaining pub discussion among government representatives about specific cases of systematic torture and other gross human rights violations. Another procedure has been developed under Resolution 1503 adopted by ECOSOC in 1970. It authorizes the UN commission to consider communications that reveal a "consistent pattern of gross and reliably attested violations of human rights".

The 1235 and 1503 procedures offer a form of sanction, for no government wishes to stand accused of torture before other governments even in closed session. In addition, the Secretary-General can in certain cases exercise his "good offices" to protect individuals from human rights abuses by contacting governments to express urgent concern or to ask for information about detainees at risk of being tortured.

Organization of American States two bodies empowered by the Organization of American States to monitor member states' implementation of norms against torture and other human rights abuses are the Inter-American Commission of Human Rights and the InterAmerican Court of Human Rights. The commission has some of the most flexible procedures for dealing with human rights abuses of any of the inter-governmental human rights bodies.

It acts on allegations of torture received not only from an alleged torture victim

but "any person or group of persons". It sends emergency telegrams and makes other urgent approaches to governments concerning individuals at risk of torture; it reviews information about individual cases and country situations; it can act on its own initiative; it can seek authority "to conduct on-site observations in the territory of a state, with the consent, or at the invitation, of the government in question". Even without the government's consent the commission can issue a report on its investigations. On-site visits can add to the balance and credibility of the findings. Since the late 1970s the commission has issued subsequent reports on such visits to investigate torture and other violations of human rights in Colombia, Haiti, Panama, Nicaragua under President Somoza, El Salvador and Argentina.

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TORTURE BRIEFING

only seven of the 51 member states had done so.

....

The lack of enforcement machinery and the political pressures on all such human rights bodies mean that their effectiveness in stopping torture largely depends on the willingness of governments to act on their recommendations.

Because of these inherent weaknesses, it is all the more important that governments that inflict torture be pressed by other governments directly, via all available bilateral channels, to stop torture and to comply with the findings of intergovernmental human rights bodies. Governments could instruct their embassy officials abroad to collect information about torture, or could send observers to trials of defendants in other countries who allege torture, and they could publicly condemn the use of torture in named countries. Governments that supply military, security or police training and equipment to other governments should ensure that these transfers of equipment and training do not facilitate torture. They should refrain from sending anyone to another country where they can reasonably be expected to be tortured. Unless governments use all appropriate means of pressure-bilateral as well as multilateral-to persuade a government to comply with the recommendations of inter-governmental human rights bodies, the international human rights procedures risk being discredited. Action by international non-govemmental organizations International non-governmental organizations, among them Amnesty International, have become increasingly active against torture in recent years. Some investigate and publicize individual allegations or widespread patterns of torture; others intercede directly with governments to try to protect people likely to be tortured. Research studies into the legal framework of states that practise torture and on-site missions to investigate reports of torture are among the different methods of non-governmental organizations. The education of their own constituents and of the general public about torture is often part of their concern, as is their moral, legal and sometimes financial support for torture victims and their relatives.

The International Committee of the Red Cross (ICRC) plays a unique role in ameliorating the conditions in which people are held in custody. It is the only institution that regularly visits prisoners held by their opponents, whether in their own or a foreign land and has done so for more than a hundred years. In 1981, it visited 489 places of detention, and between 1971 and 1981 its delegates carried out approximately 15,000 visits in some 80 countries. The ICRC is concerned with the conditions of (not the reasons for) a prisoner's detention and does not make delegates' findings public since this would endanger its future visits to prisoners. Unfortunately, even in many countries where the

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International instruments that prohibit torture

Global

Universal Declaration of Human Rights (1948), Article 5: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Geneva Convention (1949): Common Article 3 of the four Geneva Conventions forbids "cruel treatment and torture of persons taking no active part in the hostilities". Common Article 3 also proscribes "outrages upon personal dignity, in particular humiliating and degrading treatment". Under Article 99 of the Third Geneva Convention, "no moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused". International Covenant on Civil and Political Rights (1966), Article 7: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation."

Regional

European Convention for the Protection

ICRC has access to some prisoners, the governments deny its delegates access to detainees under interrogation, who are the prisoners most in danger of torture. The ICRC has consequently set itself the "permanent objective... in all countries accepting its presence, to endeavour to have access to detainees from the time of their arrest".

The International Commission of Jurists (ICJ) focuses on national and international legal matters related to the development and observance of human rights norms, publicizing cases of lawyers and judges who speak out against torture committed by their governments, and who are themselves victimized. A significant part of the ICJ's work against torture is the drafting and promotion of international instruments.

International medical organizations have addressed questions of medical help for torture victims, better methods of verifying torture scientifically and ethical aspects of the involvement of medical personnel in torture and ill-treatment. The World Medical Association's Declaration of Tokyo (1975) forbids doctors to "countenance, condone or participate in the practice of torture or other forms of cruel, inhuman or degrading procedures, whatever the offence of which the victim of such procedures is suspected, accused or guilty, and whatever the victim's beliefs or motives, and in all situations, including armed conflict and civil strife”.

The resolution adopted in 1975 by the International Council of Nurses on the Role of the Nurse in the Care of Detainees

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Today, due to these national and international efforts, detainees and their families, lawyers and associates are more aware than ever before that international support is available. One such means of direct assistance is the Urgent Action network established by Amnesty International in 1974 to allow a speedy response by cables and express letters from individual participants around the world on behalf of a person known by name who is at risk of being tortured. In 1983 some 30,000 people from 47 countries participated in this network. Between mid-1974 and 1979 Amnesty International interceded on behalf of 1,143 individuals in danger of torture (excluding mass arrests) in 32 countries; between January 1980 and mid-1983, Amnesty International made similar urgent appeals on behalf of 2,687 individuals in 45 countries. This type of action, to be effective, depends on receiving reliable information quickly from those close to a detainee, for torture

be completely prohibited as punishments for disciplinary offences."

UN Code of Conduct for Law Enforce ment Officials (1979), Article 5: "No law enforcement official may inflict, instigate, or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment, nor may any law enforcement official invoke superior orders or exceptional circumstances... as a justification of torture or other cruel, inhuman or degrading treatment or punishment". In this code of conduct, the term "law enforcement officials" is said to include all officers of the law who exercise police powers, especially the powers of arrest or detention.

UN Principles of Medical Ethics (1982), Principle 2: "It is a gross contravention of medical ethics, as well as an offence under applicable international instruments, for health personnel, particularly physicians, to engage, actively or passively, in acts which constitute participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment or punishment."

usually occurs in the first days or weeks in detention. Information leads to exposure, a key to stopping an individual's suffering and to pressing a government to abandon the practice. The increased flow of such information in the last few years indicates not only that torture remains a major international problem in the 1980s, but more positively, that those who live in fear of torture know more how to reach abroad quickly for help.

Amnesty International believes that any government that wishes to stop torture has the means to do so. It is a question of political will. In adopting the Universal Declaration of Human Rights, the Declaration against Torture and other statements of international law and human rights, governments have accepted the illegality of torture and agreed to abolish it.

Amnesty International has compiled a list of some of the principal measures which governments should take to prevent torture. The following 12-Point Program for the Prevention of Torture has been compiled from existing international standards and from the recommendations which Amnesty International itself has made over the years to governments of countries where torture is inflicted. The organization believes that the program and the standards on which it is based should be publicized widely. The various points in the program can be used as a test of a government's willingness to prevent torture.

Hon. DANTE B. FASCELL,
Chairman, Committee on Foreign Affairs, United States House of Representatives,

Washington, DC.

DEAR MR. CHAIRMAN: Thank you for the opportunity of comment on H.J. Res. 605 "Regarding the implementation of the policy of the United States Government in opposition to the practice of torture by any foreign government."

The Department of State supports this resolution as worded, with the exception of the first two clauses. In order to avoid suggesting official endorsement of a specific list of countries practicing systematic torture as compiled by any particular nongovernmental human rights organization, we propose that the wording of the first two clauses be changed to read as follows:

APPENDIX 2

"Whereas international human rights organizations have investigated and reported on the use of torture in many countries throughout the world;

UNITED STATES DEPARTMENT OF STATE,
Washington, DC, August 22, 1984.

"Whereas the Department of State in its annual country reports on human rights practices has reprorted that torture is all too frequent in many countries of the world."

242ST2 005

53

The Office of Management and Budget advises that from the standpoint of the Administration's program there is no objection to the submission of this report.

Sincerely,

89

2 BR

W.TAPLEY BENNETT, Jr.,
Assistant Secretary,
Legislative and Intergovernmental Affairs.

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